White v Tyndall

• Jurisdiction: Ireland
• Judgment Date: 21 February 1887
• Date: 21 February 1887
• Court: Court of Appeal (Ireland)

Appeal.

Before LORD ASHBOURNE, C., and FITZ GIBBON and BARRY, L. J J.

TYNDALL

and

WHITE

Sorsbie v. ParkENR 12 M. & W. 146, 156.

Primrose v. BromleyENR 1 Atk. 89.

Levy v. SaleUNK 37 L. T. (N. S.) 709.

Hellier v. Gasbard Siderfin, 266.

The King v. The Inhabitants of Great WakeringENR 5 B. & Ad. 971.

Eccleston v. Clipsham See also 3 Rol. Abr. 64.

Tippins v. CoatesENR 18 Beav. 401.

Webb v. PlummerENR 2 B. & Ald. 746.

The Earl of Shrewsbury v.Gould Ibid. 487, 494.

Kendall v. HamiltonELR 4 App. Cas. 504, 545.

Keightley v. WatsonENR 3 Exch. 716.

Bradburne v. BotfieldENR 14 M. & W. 559.

Wilmer v. CurreyENR 2 De G. & Sm. 347.

Clarke v. BickersENR 14 Sim. 639.

Beer v. BeerENR 12 C. B. 60.

Tippet v. HawkeyENR 3 Mod. 264.

Copland v. Laporte 3 Ad.& Ell. 517.

Robinson v. WalkerENRENR 7 Mod. 154; 1 Salk. 393.

James v. EmeryENR 5 Prices, 533; 2 Moore, 195.

James v. EmeryENR 2 Moore, 195.

Levy v. SaleUNK 37 L. T. (N. S.) 709.

Landlord and tenant — Lease — Covenant; whether joint, or joint and several.

VoL. XX.] Q. B., C. P., & EX. DIVISIONS. 517 that that is profit, and is assessable to income tax ; and next, that Ex. Din. this money is so chargeable, notwithstanding the 16th section of 1887. the Act of 1870. Well, that being so, we think we must put this CORPORATION OF DUBLDI case in some train for ultimate termination, and rapid termination, v. um. so as not to allow it to hang over ; and what we propose to do is McAi this :-now that we have decided these two points of principle, to put it upon Mr. Bewley to make an application for us to send back this case to the Special Commissioners for the purpose of amend ment. DOWSE, B., and ANDREWS, J., concurred. Solicitor for the Corporation : J. Mac Sheehy. Solicitor for the Inland Revenue : B. O'B. Prolong. TYNDALL v. WHITE (1). Appeal. 1886. Landlord and tenant-Lease-Covenant : to/tether joint, or joint and several. Deo. 10. A lease of lands to A and B, to hold to A and B, their executors, adminis 1887. trators, and assigns, as tenants in common for a term of years, contained a Feb. 21. covenant by A and B, that. they, or some or one of them, their executors, administrators, or assigns, would pay the reserved rent, and keep the demised premises in repair :- Held, on appeal (reversing the decision of the Common Pleas Division), that the covenant was not joint only, but joint and several. APPEAL by the plaintiffs from the order of the Common Pleas Division of the 30th June, 1886, overruling their demurrer to the 2nd and 4th paragraphs of the statement of defence. The pleadings and facts are fully set out in the report of the hearing below-18 L. R. Ir. 263. (1) Before Loan ASHBOURNE, C., and Frrz GmBox and B&ux, LIJ. 518 LAW REPORTS (IRELAND). [L. K. L Appeal. E. T. Bewley, Q. C., and Price, for the appellants, con-1886. tended that the covenant was joint and several, and cited :- TrNsei.. Elphinstone on the Construction of Deeds, 434, 435 ; Platt on V. Winn. Covenants, 117, 136 ; Shep. Touchst. by Preston, 166 ; Comyn's Landlord and Tenant (ed. 1829), p. 102 ; Sorsbie v. Park (1) ; Primrose v. Bromley (2) ; Levy v. Sale (3) ; Hellier v. Gasbard (4); The King v. The Inhabitants of Great Wakering (5) ; Leake on Contracts (ed. 1878), p. 457; 1 Wms. Sam d. (ed. 1871), p. 162, citing Eccleston v. Clipsham (6) ; Lindley on Partnership (ed. 1878), p. 369 ; Tippins v. Coates (7) ; Webb v. Plummer (8) ; The Earl of Shrewsbury v. Gould (9). Serjeant _Hemphill, Q. C., and William Anderson, Q. C. (with them Samuel V. Peet), for the respondents, contended that the covenant was joint only. They cited : Kendall v. Hamilton (10) ; Keightley v. Watson (11) ; Bradburne v. Botfield (12) ; Wilmer v. Currey (13); Clarke v. Bickers (14) ; Beer v. Beer (15) ; Tippet v. Hawkey (16) ; Copland v. Laporte (17). 1887. LORD ASHBOURNE, C. :- Feb. 21. This case comes before us on appeal from the order of the ComÂmon Pleas Division, overruling the demurrer taken by the plainÂtiffs to the statement of defence by the defendants William and George E. White. The case turns upon the true construction of a lease, dated 21st January, 1842, whereby Richard Pope demised certain premises to George White and Albert White, their execuÂtors, administrators, and assigns, " as tenants in common, and not as joint tenants." The covenant in controversy is that on the part (1) 12 M. & W. 146, 156. (2) 1 Atk. 89. (3) 37 L. T. (N. S.) 709. (4) Siderfin, 266. (5) 5 B. & Ad. 971. (6) See also 3 Roll. Abr. 64. (7) 18 Bear. 401. (8) 2 B. & Ald. 746. (9) Ibid. 487, 494. (10) 4 App. Cas. 504, 545. (11) 3 Exch. 716. (12) 14 M. & W. 559. (13) 2 De G. & Sm. 347. (14) 14 Sim. 639. (15) 12 C. B. 60. (16) 3 Mod. 264. (17) 3 Ad. & Ell. 517...